Dept. of Law JusticeLLB(Hons)-Program.

Course Title: Law of CrimesCourse Code: LLBH 2224

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Assignment On –1

SOUTHEAST

UNIVERSITY

International Crimes Tribunal Act, 1973 Bangladesh

Introduction:

In 2009, nine months before the beginning of the formation of the International Crimes Tribunal, I went to the office of UN’s Human Rights Commission in Geneva. There I heard that about two weeks previously the chairman of the Human Rights Commission, Ms Navi Pillay, had expressed her concerns in a written letter to the government of Bangladesh that, it is not possible to ensure fair justice for the

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accused under the International Crimes (Tribunal) Act of 1973. Ms Pillay is a top-class international legal expert. She was a prominent judge in Rwanda’s War Crimes Tribunal. The Bangladesh Desk Officer refused to provide me with a copy of that letter. The Bangladesh government did not publish the letter to the public. I did not get a copy of the letter from Renetta, either. Anticipating the start of the trial of war criminals, I had been preparing for it since 2009.

The first and primary duty of a lawyer is to analyses the law thoroughly. With this purpose I began to consult for opinions from best lawyers in the world. I took opinions from 5 foreign legal experts. They are: the renowned British constitutional expert Michael Beloff QC. He was already informed about the constitution, law and legal process of Bangladesh from before. He was our main counsel at abroad in the citizenship case of Professor Gulam Azam two decades earlier; Mr Soli J Sorabjee ( A veteran Indian senior lawyer and once a renowned Attorney General);Prof. William Schabas, a professor at the Galway University in Ireland and an expert in human rights laws; Gregor Guy-Smith, an American citizen and an expert in international criminal law.

Their unanimous opinion was that the act of 1973 is a domestic act and falls far below the International Standards, and fair trial is not possible under this act. In addition, in order to know more about the historical context, I took the opinion from an octogenarian Australian citizen Prof. Otto Triffterer, who is the dean of law faculty at Salzburg University and who was involved in drafting the [original] 1973 act.

International Crimes (Tribunals) Act, 1973 Bangladesh

Definitions:   2. In this Act, unless there is anything repugnant in the subject or context,-

(a) “auxiliary forces” includes forces placed under the control of the Armed Forces for operational, administrative, static and other purposes;

(b) “Government” means the Government of the People's Republic of Bangladesh;

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(c) “Republic” means the People's Republic of Bangladesh;

(e) “territory of Bangladesh” means the territory of the Republic as defined in article 2 of the Constitution of the People's Republic of Bangladesh;

(f) “Tribunal” means a Tribunal set up under this Act.

Jurisdiction of Tribunal and crimes:  

3. (1) A Tribunal shall have the power to try and punish any individual or group of individuals, or organization,] or any member of any armed, defence or auxiliary forces, irrespective of his nationality, who commits or has committed, in the territory of Bangladesh, whether before or after the commencement of this Act, any of the crimes mentioned in sub-section (2).

(2) The following acts or any of them are crimes within the jurisdiction of a Tribunal for which there shall be individual responsibility, namely:-

(a) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;

(b) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;

(c) Genocide: meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as:

(i) killing members of the group;

(ii) causing serious bodily or mental harm to members of the group;

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(iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(iv) imposing measures intended to prevent Births within the group;

(v) forcibly transferring children of the group to another group;

(d) War Crimes: namely, violation of laws or customs of war which include but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population in the territory of Bangladesh; murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages and detenues, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(e) violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949;

(f) any other crimes under international law;

(g) attempt, abetment or conspiracy to commit any such crimes;

(h) complicity in or failure to prevent commission of any such crimes.

Liability for Crimes:  

4. (1) When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone.

(2) Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or

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supervise the actions of the persons under his command or his subordinates, whereby such persons or subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.

Official position, etc not to free an accused from responsibility for any crime   5. (1) The official position, at any time, of an accused shall not be considered freeing him from responsibility or mitigating punishment.

(2) The fact that the accused acted pursuant to his domestic law or to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal deems that justice so requires.

Tribunal:  

6. (1) For the purpose of section 3, the Government may, by notification in the official Gazette, set up one or more Tribunals, each consisting of a Chairman and not less than two and not more than four other members.

(2) Any person who is a Judge, or is qualified to be a Judge, or has been a Judge, of the Supreme Court of Bangladesh, may be appointed as a Chairman or member of a Tribunal.

(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.

(3) The permanent seat of a Tribunal shall be in Dhaka:

Provided that a Tribunal may hold its sittings at such other place or places as it deems fit.

(4) If any member of a Tribunal dies or is, due to illness or any other reason, unable to continue to perform his functions, the Government may, by notification in the official Gazette, declare the office of such member to be vacant and appoint thereto another person qualified to hold the office.

(5) If, in the course of a trial, any one of the members of a Tribunal is, for any reason, unable to attend any sitting thereof, the trial may continue before the other members.

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(6) A Tribunal shall not, merely by reason of any change in its membership or the absence of any member thereof from any sitting, be bound to recall and re-hear any witness who has already given any evidence and may act on the evidence already given or produced before it.

(7) If, upon any matter requiring the decision of a Tribunal, there is a difference of opinion among its members, the opinion of the majority shall prevail and the decision of the Tribunal shall be expressed in terms of the views of the majority.

(8) Neither the constitution of a Tribunal nor the appointment of its Chairman or members shall be challenged by the prosecution or by the accused persons or their counsel.

Prosecutors:  

7. (1) The Government may appoint one or more persons to conduct the prosecution before a Tribunal on such terms and conditions as may be determined by the Government; and every such person shall be deemed to be a Prosecutor for the purposes of this Act. (2) The Government may designate one of such persons as the Chief Prosecutor.

Investigation:   8. (1) The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial.

(2) Any person appointed as a Prosecutor is competent to act as an Investigation Officer and the provisions relating to investigation shall apply to such Prosecutor. (3) Any Investigation Officer making an investigation under this Act may, by order in writing, require the attendance before himself of any person who appears to be acquainted with the circumstances of the case; and such person shall attend as so required.

(4) Any Investigation Officer making an investigation under this Act may examine orally any person who appears to be acquainted with the facts and circumstances of the case.

(5) Such person shall be bound to answer all questions put to him by an

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Investigation Officer and shall not be excused from answering any question on the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such person:

Provided that no such answer, which a person shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding.

(6) The Investigation Officer may reduce into writing any statement made to him in the course of examination under this section. (7) Any person who fails to appear before an Investigation Officer for the purpose of examination or refuses to answer the questions put to him by such Investigation Officer shall be punished with simple imprisonment which may extend to six months, or with fine which may extend to Taka two thousand, or with both.

(8) Any Magistrate of the first class may take cognizance of an offence punishable under sub-section (7) upon a complaint in writing by an Investigation Officer.

(9) Any investigation done into the crimes specified in section 3 shall be deemed to have been done under the provisions of this Act.

Commencement of the Proceedings:   9. (1) The proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor, or a Prosecutor authorised by the Chief Prosecutor in this behalf, of formal charges of crimes alleged to have been committed by each of the accused persons.

(2) The Tribunal shall thereafter fix a date for the trial of such accused person.

(3) The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.

(4) The submission of a list of witnesses and documents under sub-section (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial:

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Provided that notice shall be given to the defence of the additional witnesses intended to be called or additional evidence sought to be tendered by the prosecution.

(5) A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosecution at the time of the commencement of the trial. Procedure of trial:   10. (1) The following procedure shall be followed at a trial before a Tribunal, namely:-

(a) the charge shall be read out;

(b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty;

(c) if the accused person pleads guilty, the Tribunal shall record the plea, and may, in its discretion, convict him thereon;

(d) the prosecution shall make an opening statement;

(e) the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may re-examine them;

(f) the witnesses for the defence, if any, shall be examined, the prosecution may cross-examine such witnesses and the defence may re-examine them;

(g) the Tribunal may, in its discretion, permit the party which calls a witness to put any question to him which might be put in cross-examination by the adverse party;

(h) the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question;

(i) the prosecution shall first sum up its case, and thereafter the defence shall sum up its case:

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Provided that if any witness is examined by the defence, the prosecution shall have the right to sum up its case after the defence has done so;

(j) the Tribunal shall deliver its judgment and pronounce its verdict.

(2) All proceedings before the Tribunal shall be in Bangla or] English.

(3) Any accused person or witness who is unable to express himself in, or does not understand, English may be provided the assistance of an interpreter.

(4) The proceedings of the Tribunal shall be in public:

Provided that the Tribunal may, if it thinks fit, take proceedings in camera.

(5) No oath shall be administered to any accused person.

Trial in absentia:   10A. (1) Where a proceeding is commenced under sub-section (1) of section 9, the tribunal, before fixing the date for the trial under sub-section (2) of the said section, has reason to believe that the accused person has absconded or concealed himself so that he cannot be produced for trial, may hold the trial in his absence following the procedure as laid down in the Rules of Procedure made under section 22 for such trial.

(2) Where the accused person is tried under sub-section (1), the Tribunal may direct that a Counsel shall be engaged at the expense of the Goverment to defend the accused person and may also determine the fees to be paid to such Counsel.

Powers of Tribunal:  

11. (1) A Tribunal shall have power-

(a) to summon witnesses to the trial and to require their attendance and testimony and to put questions to them;

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(b) to administer oaths to witnesses;

(c) to require the production of document and other evidentiary material;

(d) to appoint persons for carrying out any task designated by the Tribunal.

(2) For the purpose of enabling any accused person to explain any circumstances appearing in the evidence against him, a Tribunal may, at any stage of the trial without previously warning the accused person, put such questions to him as the Tribunal considers necessary:

Provided that the accused person shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Tribunal may draw such inference from such refusal or answers as it thinks just;

(3) A Tribunal shall-

(a) confine the trial to an expeditious hearing of the issues raised by the charges;

(b) take measures to prevent any action which may cause unreasonable delay, and rule out irrelevant issues and statements.

(4) A Tribunal may punish any person, who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members into hatred or contempt, or does anything which constitutes contempt of the Tribunal, with simple imprisonment which may extend to one year, or with fine which may extend to Taka five thousand, or with both.

(5) Any member of a Tribunal shall have power to direct, or issue a warrant for, the arrest of, and to commit to custody, and to authorize the continued detention in custody of, any person charged with any crime specified in section 3.

(6) The Chairman of a Tribunal may make such administrative arrangements as he considers necessary for the performance of the functions of the Tribunal under this Act.

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Power to transfer cases:  

11A.(1) At any stage of a case, a Tribunal may, on its own motion or on the application of the Chief Prosecutor, by an order in writing, transfer the case to another Tribunal, Whenever it considers such transfer to be just, expedient and convenient for the proper dispensation of justice and expeditious disposal of such cases.

(2) Where a case has been transferred under sub-section (1), the Tribunal which thereafter tries such case shall, subject to the provisions of this Act, proceed from the stage at which it was so transferred.

Provision for defence counsel:  

12. Where an accused person is not represented by counsel, the Tribunal may, at any stage of the case, direct that a counsel shall be engaged at the expense of the Government to defend the accused person and may also determine the fees to be paid to such counsel.

Restriction of adjournment:  

13. No trial before a Tribunal shall be adjourned for any purpose unless the Tribunal is of the opinion that the adjournment is in the interest of justice.

 Statement or confession of accused persons:   14. (1) Any Magistrate of the first class may record any statement or confession made to him by an accused person at any time in the course of investigation or at any time before the commencement of the trial.

(2) The Magistrate shall, before recording any such confession, explain to the accused person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the accused making it, he has reason to believe that it was made voluntarily.

Pardon of an approver:  

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15. (1) At any stage of the trial, a Tribunal may with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any of the crimes specified in section 3, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the crime and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) Every person accepting the tender under this section shall be examined as a witness in the trial.

(3) Such person shall be detained in custody until the termination of the trial.

Charge, etc:   16. (1) Every charge against an accused person shall state-

(a) the name and particulars of the accused person;

(b) the crime of which the accused person is charged;

(c) such particulars of the alleged crime as are reasonably sufficient to give the accused person notice of the matter with which he is charged.

(2) A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.

Right of accused person during trial:   17. (1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him.

(2) An accused person shall have the right to conduct his own defence before the Tribunal or to have the assistance of counsel. (3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.

No excuse from answering any question:  

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18. A witness shall not be excused from answering any question put to him on the ground that the answer to such question will criminate or may tend directly or indirectly to criminate such witness, or that it will expose or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind:Provided that no such answer which a witness shall be compelled to give shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence.

Rules of evidence:   19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

(2) A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.

(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.

(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organizations.

Judgment and sentence:   20. (1) The Judgment of a Tribunal as to the guilt or the innocence of any accused person shall give the reasons on which it is based: Provided that each member of the Tribunal shall be competent to deliver a judgment of his own.

(2) Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.

(2A) A copy of judgment under the seal and signature of the Registrar of a

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Tribunal shall be provided, free of cost, to the prosecution and the accused person on the date of delivery of the judgment.

(2B) notwithstanding anything contained in any other law, rule or legal instrument for the time being in force, when a copy of Judgment is provided under sub-section (2A), it shall be used as certified copy of the judgment of the Tribunal for the purpose of preferring an appeal under section 21.

(3) The sentence awarded under this Act shall be carried out in accordance with the orders of the Government.

Right of Appeal:  

21. (1) A person convicted of any crime specified in section 3 and sentenced by a Tribunal may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against such conviction and sentence.

(2) The Government or the complainant or the informant, as the case may be, may appeal, as of right, to the Appellate Division of the Supreme Court of Bangladesh against an order of acquittal or an order of sentence.

(3) An appeal under sub-section (1) or (2) shall be preferred within 30 (thirty) days from the date of conviction and sentence, or acquittal or any sentence, and no appeal shall lie after the expiry of the aforesaid period.

(4) The appeal shall be disposed of within 60 (sixty) days from the date of its filing.

(5) At the time of filing the appeal, the appellant shall submit all documents as may be relied upon by him.

Rules of procedure:  

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22. Subject to the provision of this Act, a Tribunal may regulate its own procedure.

 Certain laws not to apply:  

23. The provisions of the Criminal Procedure Code, 1898 (V of 1898), and the Evidence Act, 1872 (I of 1872), shall not apply in any proceedings under this Act.

Bar of Jurisdiction:   24. No order, judgment or sentence of a Tribunal shall be called in question in any manner whatsoever in or before any Court or other authority in any legal proceedings whatsoever except in the manner provided in section 21.

Indemnity:   25. No suit, prosecution or other legal proceeding shall lie against the Government or any person for anything, in good faith, done or purporting to have been done under this Act.

Provisions of the Act over-riding all other laws:  

26. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Feature of  The International Crimes Tribunal Bangladesh:

Bangladesh attracted international attention after formation of the tribunal in March 2010. Everyone sided in favour of the trial. But with one condition: the trial must be transparent and comply with international standards. The first initiative was taken by veteran member of the British House of Lords and a sincere friend of Bangladesh, Lord Eric Avebury. With his initiative the International Bar Association’s War Crimes Committee gave an opinion in 2009. They pointed at 14 errors and flaws in the tribunal act. Afterwards, one by one, letters were written to the government of Bangladesh by USA’s special ambassador-at-large Stephen J Rapp ( dated 21 March 2011), International Centre for Transitional Justice (13 March 2011), Human Rights Watch (18 May 2011) and Amnesty International (21 June 2011). They all have pointed out flaws in the act and asked for correcting them. Otherwise, they have let it known that the trial will be questionable and unacceptable to the international community. Such views from the international community failed to have any influence whatsoever on the Bangladesh government.

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The war crimes law is a very complex law. This law is part of the international law. Possibly for this reason the Bangladesh government said in 1973 that the accused would be allowed foreign lawyers if they wish to have so. In 2011 we wanted to bring 3 renowned British experts on war crimes law to Bangladesh as defence counsels. We were not given this opportunity. We have formed a fairly strong team of domestic lawyers who have regularly been assisted by 3 British experts based in London. Still after that we have been struggling to provide a defence of international standards. But the state party have never taken any initiative to strengthen the prosecution team or to bring any foreign lawyers. This is very mysterious; this mystery might be revealed someday.The Nuremberg and Tokyo tribunals formed in 1945 were military tribunals. During the Bosnian war in 1993, nearly 50 years after the Nuremberg, international tribunal was formed for former Yugoslavia by a decision of the Security Council under the UN charter. (4)

Afterwards, Rwanda tribunal was formed in 1994, International Criminal Court (ICC) was established in 1998 (Bangladesh is a member of this court too), Special tribunals were formed in East Timor in 1999, in Sierra Leon in 2000, in Cambodia in 2001, and in Lebanon in 2007.

Apart from Nuremberg and Tokyo tribunals, all of these tribunals have accepted the International Human Rights Charter 1948 and the International Convents on Civil and Political Rights 1966. These two charters were not adopted at the time of Nuremberg and Tokyo tribunals.The Tribunal Act of Bangladesh does not recognize the fundamental and constitutional rights of an accused. These rights were stripped away by the 1st amendment in the constitution (I was delivering at the tribunal sometime in mid-2012 when one of the honourable judges told me: ‘Your client is a 3rd class citizen under the consideration of fundamental human rights’. He has said the right!). This is the contradiction between the war crimes law of Bangladesh and the international war crimes law. For this reason and without any exception, the international community have always been critical of the Bangladeshi law. (5)

On the hand those who are determined to carry out the trial under the Bangladeshi law have completely ignored and disregarded post-Nuremberg developments in the international law. This is unrealistic and unacceptable to the international community. As a result, the Bangladesh Tribunal is completely controversial to the World Community. The tribunal has lost its any remaining credibility in the Western world after publication of ‘Skypegate scandal’ in the Economist and the Amar Desh, exposing to the public serious collusion between some judges, prosecution and ministers. This trial is very controversial in the Muslim world, too.

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The Turkish President Abdullah Gul in February 2010 and Prime Minister Erdogan in November of that year said to the Bangladesh government during their visits that this trial should not be the 1st priority among government’s actions. The Prime Minister of Bangladesh and the Foreign Minister visited Ankara in 2012. This issue consumed most of the time during an intimate meeting of the prime ministers and foreign ministers of two countries. After that, the Prime Minister visited Qatar at the invitation of US-Islamic World Forum.

During that visit Islamic leaders from various countries expressed to the Prime Minister, in the presence of the Qatari Prime Minister, their displeasure about the war crimes trial. We have learnt these facts from very reliable sources. It is well known to everyone that the President of Turkey wrote a letter to the President of Bangladesh requesting to stop the trial of Prof Gulam Azam, causing a diplomatic rift between the two countries. In the last OIC conference held in Cairo foreign ministers of many countries raised this matter to the foreign minister of Bangladesh. In February of this year the OIC Secretary General and the Malaysian opposition leader Anwar Ibrahim, and on 2nd March the leader of the Tunisian ruling An-Nahda party Mr Rashed Ghannouchi criticised the tribunal and expressed grave concerns about the death penalty given against Delwar Hussain Sayeedi. As far as we know, Saudi Arabia has also expressed its concerns to Bangladesh. Therefore, it can be undoubtedly said that this trial is questioned in large part of the Muslim world. On 5th February the tribunal gave life-sentence against an assistant secretary general of Jamaat, Abdul Kader Mollah.

Soon after that demand for capital punishment was raised from Shahbag. On 28th February the tribunal gave death-sentence against a deputy ameer of Jamaat, Mawlana Delwar Hussain Sayeedi, inflaming country-wide protests and agitation, violent in some places. At least 150 people have died. The police have used disproportionate extreme force and shot indiscriminately. Both public and private properties worth millions were destroyed. People have become fearful about an uncertain future. Bangladesh has today become a place of flames and blood.In such a situation, most observers believe that any more verdicts [from this tribunal] or implementation of any of its verdicts will cause serious instability and violence throughout the country. On 7th March, British magazine the Economist published this headline, ‘Unrest in Bangladesh: a nation divided; a flawed tribunal opens old wounds and threatens Bangladesh’s future’. [Economist link] The common aim of all war crimes trials is to end a sad episode of the past and to begin a new era; to build a national unity. This was the right outcome from tribunals of Nuremberg to Yugoslavia, from East Timor ICC to Sierra Leon or Cambodia.

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However, it is absolutely clear that such an outcome is totally impossible in the case of Bangladesh through this tribunal. This trial/tribunal has been rejected outright by the international community, has been questioned by the Muslim world, has seriously divided the nation and polarised the country; this trial can serve some temporary political purpose for some vested interests, but such a trial can not bring any long-term benefit to the nation and the country. Already on 4th March the Human Rights Committee of England Bar released a statement calling for suspension of the trial process and a neutral enquiry into concerns raised by international communities. On 18th March in a seminar held at the British House of Commons titled ‘Spotlight on the Bangladesh International Crimes Tribunal’, the USA special ambassador Stephen J Rapp called on the Bangladesh government to guarantee full transparency and fairness in the trial process.

Ambassador Rapp further said that a pre-trial consensus among all political parties could have avoided any controversy and protest after the verdicts. In such a situation, the only solution to this crisis is to raise the standard of the Act to the international level and to involve the international community with the trial process. Of course, a national consensus is needed for this. No party should object to this proposal. The main opposition party BNP is already supportive of this. The Jamaate Islami should also agree to this proposal. Now, if the government agrees to this then a national consensus can be reached. But the question is whether there would be any change in government’s attitude. If there is no change in the attitude of the government then this trial will inevitably divide the nation even further and push Bangladesh towards a precipice- there is no doubt about this. Author: Senior lawyer at the Bangladesh Supreme Court and the chief of the defence team.

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